Hobson v. New Mexico & Arizona Railroad

Porter, J.

Before entering into the merits of this case it is necessary to dispose of some preliminary questions.. The defendant appeared specially, and moved to set aside the service of summons because not made npon the “president, or other head of the corporation, secretary, cashier, or managing agent thereof, or to any lawful agent appointed for that purpose, or any director or stockholder, as required by our statute.” The return showed service upon J. H. Scott, agent of defendant. The affidavit of E. B. Pomeroy, the duly-appointed, acting, and lawful agent, stated that said Scott was not the agent. The transcript does not show any order made on said motion. Therefore, for aught we know, the defendant may have abandoned his motion, and made a voluntary appearance. Comp. Laws, 414. The defendant filed a demurrer, setting forth “not waiving, nor intending to waive, its rights to be heard on the motion already noticed, and now pending, to vacate the summons,” etc. It may have been waived on the overruling the demurrer. An. answer was filed after demurrer was overruled, and no mention there made of special appearance. The party having answered, and haying had his day in court, should not be allowed to reverse all the proceedings because of this irregularity of service. Our statute says: ‘ ‘ The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the party, and no judgment shall be reversed or affected by reason of such error or defect.” Comp. Laws, 2507. “It is a general rule, now prevailing in the courts, that whereever and whenever substantial justice is secured, a mere technical error, which is harmless in its character, and which has worked no injury, will not be permitted to defeat or annul the final conclusion or consummation of judicial proceedings.” Dyas v. Keaton, 3 Mont. 501; Sweeney v. Schultes, 19 Nev. 53, 6 Pac. 45.

At the time of the institution of this suit (March 12, 1883), a statute had been passed (on the eighth of said month and year) requiring plaintiff, in every action sounding in tort, or for any interest in real estate, not evidenced by writing, at the time of the commencement of the same, to file a bond with the clerk to the effect that if he fails to prosecute.to final judgment, or dismisses, that he will pay all damages defendant may suffer, together with reasonable counsel fees and costs. No specified amount was required. This improvident act was the last one of the legislature of 1883, and was repealed among the first of the succeeding legislature. We think it of very doubtful validity, as being special in its nature. The court permitted plaintiff to file a bond which accomplished all the purposes required by the act, and we see no error in it.

The motion for continuance on acount of the absence of witnesses was properly overruled, inasmuch as plaintiff admitted that the witnesses, if present, would testify to the facts stated in the affidavit. See Comp. Laws, e. 48, p. 433, § 160.

In November, 1881, the defendant was engaged in the construction of its railroad between Benson and Contention, in the county of Cochise. The plaintiff was employed by the defendant to drive a team, hauling and distributing ties from the end of the track. The ties were taken to the end of the track by an engine, and there unloaded and distributed by teams, one of which was driven by plaintiff to the places needed to extend the track. Plaintiff was employed by the month to drive this team of defendant, at $35 per month, and board. A large number of men were employed by defendant at the same time'in the construction of the road, and all were boarded by defendant on boarding ears, which at that time were upon a side track or switch at Benson. Several miles of the track had been laid. At first, and for a number of days, the teams were driven back1 to dinner, but as the line was extended, by orders of defendant’s supervisors, the plaintiff went back to dinner upon the empty train, upon which went all the workmen engaged in the construction of the road. The plaintiff had thus been going to dinner two or three times. "While the men were at dinner the empty cars would be “side tracked,” and other ears which had been loaded would be “made up” into a train to carry other material of different kinds to the end of the track, and on this loaded train the men were sent to their work. The dining cars were on a side track. Attached to the locomotive was a flat car, upon which were water-tanks, held on the car by two large wooden cleats nailed to the floor of the car, leaving a spaee at the end of the car of three! or four feet. The loaded train was “backed” or “pushed” from the material yard to the end of the track, and, returning the cars would be at the head of the train.

The plaintiff and some others got on the water car before it became attached to the loaded cars standing on the track. The plaintiff and another man got upon that end which, when backed down, would strike the other cars. He says that after dinner the whistle blew, which was the signal to return to the train-; that the engine was moving when the. signal was given, and it came down near the boarding train, and he hurried, and, with other men, got on; “and in a minute, without a moment’s notice, the engine started, almost like a shot out of a gun, and ran into this train that was standing on the side track.” He says he was sitting with his back against the round water-tank, about four feet from the end of the car, and a little to the right of the center of the tank. A violent collision occurred, the result of which was the moving the tanks and plaintiff, and both his feet and legs were crushed, and they had to be amputated.

There was conflict of testimony as to the position of plaintiff. A witness for defendant testified that his feet and legs were hanging down over the end of the car. The superintendent of the road testified that when the train was made up, and the engine attached, and they were ready to go, and the whistle was blown, then the men were to get on, and anywhere they could find a place. He had issued orders to that effect, and said the water car was not a safe place. The plaintiff testified that he never heard any such orders; that the orders were to get on the cars that were attached to the e-ngine, when the whistle blew.

There was a conflict as to the engineer’s condition as to sobriety at the happening of the accident. A witness (a saloon keeper) testified that immediately after “he was pretty full,” and he also said: “Henry Moore [engineer] drank, and drank lots, too.” The master mechanic, on the other hand, testified that immediately after the accident happened he jumped on the engine, and the engineer was sober.

The question first arises, did the undisputed facts warrant a submission of the case to the jury? In other words, whether the plaintiff, in getting upon the car, as stated by himself, was guilty of an act evidently dangerous, and in so doing was guilty of such negligence as should preclude him from having a verdict as a matter of law. In Railroad Co. v. Stout, 17 Wall. 657, the supreme court says: “It is true, in many cases, that, where the facts are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts come in question, rather than where deduction or inferences are to'be made from the facts. * * * In some cases, too, the necessary inference from the proof is so certain that it may be ruled upon as a question of law. If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled, as a matter of law, that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So, if a coachman intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or axle, which could not have been anticipated, an injury occurred, it might be ruled, as a question of law, that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. Upon the facts proven in such cases it is a matter of judgment and discretion—of sound inference—what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of the jury. Twelve men, of the average of the community, comprising men of education, and men of little education, and men of learning, and men whose learning consists only in what they have themselves seen and heard, —the merchant, the mechanic, the farmer, the laborer,—these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment, thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.” 2 Redf. R. R. 231; Patterson v. Wallace, 1 McQueen, 748; Mangam v. Brooklyn R. Co., 38 N. Y. 455; 98 Am. Dec. 66; Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99. See other cases cited therein cited; also Fernandez v. Railway Co., 52 Cal. 45; Houston & G. N. R. Co. v. Randall, 50 Tex. 261.

We hold that this case should have gone to the jury and that the motion for non-suit was properly denied.

Then, it not appearing from the evidence adduced by the plaintiff that this case should have been determined by the court on presentation of plaintiff’s case, it was incumbent on defendant to prove a want of care. In Railroad Co. v. Gladmon, 15 Wall. 401, it is said: “If there are circumstances which convict bim [plaintiff] of concurring negligence, the defendant must prove them, and thus defeat the action.” In that case a quotation is made from Oldfield v. New York & H. R. R. Co., 14 N. Y. 310, wherein Denio, J., says: “I am of an opinion that it is not a rule of law of universal application that the plaintiff must prove affirmatively that his conduct on the occasion of the injury was cautious and prudent. * * * The culpability of the defendant must be proved affirmatively before the case can go to the jury; but the absence of any fault on the part of the plaintiff may be inferred from circumstances, and the disposition of men to take care of themselves, and keep out of difficulty, may properly be taken into consideration.”

The jury in this case had fairly presented to them the fact as to whether the boarding of the car by plaintiff was done at the proper time, viz.: when the whistle blew for the men to get on, and whether the plaintiff used proper care and caution in getting on the tank car, and sitting where he did. Were the jury to presume upon the carelessness of the engineer, and was the plaintiff to so presume? Did not the jury determine that with ordinary caution in the engineer the plaintiff was in a position safe from harm ? They had before them the proof that the water-tanks moved forward by the collision, and the water ear was knocked off the track. They must have been satisfied that the conduct of the engineer was reckless, and that he acted regardless of the consequences. Had the engine-driver moved his engine with due care, plaintiff was safe, whether his legs hung over the end of the car or not, and he cannot be charged with negligence in presuming that the engine-driver would use due care. They had before them the testimony that Hobson was a stranger to the engineer, and knew nothing about him. They had before them the contested point of the position of the legs of plaintiff, and the jury had this instruction given them; “If you find that an order was made by defendant in regard to the time and place of getting on the train to return to the end of the track, and the plaintiff violated the order by getting on the car before the train was made up, or before the signal was given.to get upon the train, and that such violation contributed proximately to this injury received by plaintiff, he cannot recover;” and the trial judge had before him all the witnesses, could judge of their manner of giving evidence, etc., and he refused a new trial.

The next matter that presents itself for consideration is, did the plaintiff and the engineer occupy such relations towards each other that the act of the one exempted the common employer (the railroad company) from liability? The plaintiff’s business was only to drive the teams from one end of the line for the distribution of ties still further on. Mr. J. C. Fitch was his immediate superintendent or foreman. Mr. Montand on was Fitch’s immediate superior, and engineer of the track-laying department. The plaintiff had nothing whatever to do with the locomotive engineers, save to be taken to and from his dinner as ordered by Mr. Fitch. His work was not directly connected with this engineer. Had a fellow-teamster injured the plaintiff, then he could .not recover from the employer, on the only just and true basis laid down in all the decisions, and more particularly the Moranda Case, 93 Ill. 302, 34 Am. Rep. 168, wherein this cogent language and argument is used: “Where servants of the same master are directly co-operating with each other in a particular business, at the time of the injury, or are, by their usual duties, brought into habitual consociation, it may well be supposed that they have the power of influencing each other to the exercise of constant caution in the master’ work (by their example, advice, and encouragement, and by reporting delinquencies to the master) in as great and in most cases in a greater degree than the master. If, then, each such eases therein cited; also Fernandez v. Railway Co., 52 servant knows that neither he nor his fellow-servant, if injured by the other’s negligence, can have redress against the master, he has such incentive to constant care that the well-being of society in such cases does not demand that the master be made to answer. The same considerations of policy which, to avoid injury to third persons, usually demand that the master be held responsible, seem plainly not to demand it in the case of such co-servants. But though servants are men employed by the same master, still, unless either their duties are such as that they usually bring about personal associations between such servants, or unless they are actually cooperating at the time of the injury in hand, or in the same line of employment, they have no power to incite each other to caution by counsel, exhortation, or example, or by reporting delinquencies to the master, and the well-being of society in such case must depend upon the devotion of the servant-to the interests of the master, and the zeal of the master to promote a constant exercise of due care by his servants.” And, further, says the opinion “Where servants of a common master are not consociated in the discharge of their duties; where their employment does not require co-operation, and does not bring them together, or in such relations that they can exercise an influence upon each other for the promotion of proper caution,—in such case the reason of the rule holding the master responsible for damages resulting from the negligence of one of his servants seems reasonably to apply with as great force as if a stranger were the party injured.”

And even, in application to the ease at bar, can be invoked the reasoning of Chief Justice Shaw in the celebrated case of Farwell v. Boston & W. R. Corp., 4 Metc. 49, 38 Am. Dec. 339, wherein he says: ‘1 Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends to a great extent on the care and skill with which each other shall perform his appropriate duty, each is the observer of the conduct of the other, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service if the common employer will not take such precautions, and employ such agents, as the safety of the whole party may require. By these means the safety of each will he much more effectually secured than could be done by a resort to the common employer for indemnity in the case of loss by the negligence of each other.” Farwell v. Boston & W. R. Corp., arose from injuries received by an engineer through the carelessness of another servant of the company, in the management of the switch, and the court, in announcing this doctrine of the exemption of the employer from liability, says that it is' a nice question, and adds a “caution against any hasty conclusion as to the application of this rule to a ease not fully within the same principle.”

The supreme court of the United States in Randall v. Baltimore & O. R. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, say that hitherto this-court had not occasion to decide who were fellow-servants, and that for the purpose of that case it was not necessary to “undertake to lay down a precise and exhaustive definition of the general rule, or to weigh the conflicting views which have prevailed in the courts of the several states. ’ ’ There a switchman was injured by a train where there was “a net-work of tracks.” There was no evidence that the tracks were improperly constructed, or that the engine-driver was unfit for his duty. The court there say that the general rule of law is established that one who enters in the service of another takes upon himself the ordinary risks of the negligence of his fellow-servant in the course of his employment. There the plaintiff was in attendance on ljis switches, and must have known all the dangers attendant thereupon, and could look out for the consequences. In the case at bar no such conditions arise. The engineer was taking plaintiff to his work, which was separate and distinct from that of the engineer. If the work of plaintiff was performed on or about the train, then, by the rules as laid down in the prevailing line of authorities, he would have been a fellow-servant with the engineer. We do not think the case at bar comes within this case; nor the case of Hough v. Railway Co., 100 U. S. 213; nor in Armour v. Hahn, 111 U. S. 313; 4 Sup. Ct. Rep. 433; nor Abend v. Terre Haute R. Co., 111 Ill. 202, 53 Am. Rep. 616. It does come within Seaver v. Boston & M. R. R., 14 Gray, 466, and Gilman v. Eastern R. Corp., 10 Allen, 233, 87 Am. Dec. 635, as the eases are stated in defendant’s brief. We have had no access to these cases, but we do not agree with them as defendant states them.

Russell v. Hudson River R. Co., 17 N. Y. 134, cited on this point by defendant, we have examined and find that the plaintiff was employed in loading gravel and sand at the pits where they were dug, upon cars, for transportation where filling was required. He and the others thus employed were paid monthly. The company took them to and from New York, (their home,) they paying no fare. On the occasion of the accident the plaintiff helped to unload, and his duties were then ended, and, on proceeding further, he was injured. And say the court: “It is not, I think, entirely clear that the defendants would not have had a right, under their agreement with the plaintiff, to insist upon returning to the city at night. The gravel train could not be properly managed by the engineer alone. It appears that some of the men who worked in the gravel-pit also manned the brakes. A portion of the hands employed lived in the city, and the defendant may have relied upon them to work the brakes in case of necessity, upon return of the train, and may have taken this as a consideration, in agreeing to bring them home at night.”

There could not be any reasonable supposition that this plaintiff—a teamster, and nothing more—had, in the slightest degree, anything to do with the movement of this train hauling materials. In the above-cited case some of the workmen were used in and about the train in moving it. It is not analogous to this case, and we think, also, the court rather begged the question in that case. The eminent jurists deciding those cases put them, especially the Farwell Case, on the ground of public policy, saying that, “in considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned.” The railways were then but few, and only for short distances. The employes could be known, one to the other, and to the common master, and the dire consequences of the. rule so established could not have been foreseen.

Judge Deady, in Gilmore v. Northern Pac. R. Co., 18 Fed. 866, in commenting on those cases, in reference to the responsibility of the master by negligence of fellow-servants, uses this apt language: “In the progress of society, and the general substitution of ideal and invisible masters and employers for the actual and visible ones of former times, in the form of corporations engaged in varied, detached, and widespread operations, it has been seen and felt that the universal application of the rule often resulted in hardship and injustice. Accordingly the tendency of the more modern authorities appears to' be in the direction of such modification and limitation of this rule as shall eventually devolve upon the employer, under these circumstances, a due and just share of the responsibility for the lives and limbs of the persons in its employ.”

The harsh doctrine that an employe is presumed to take the risks incident to the undertaking, and that he is paid for the same, should never be invoked unless it applies to a case where each other’s conduct can be observed; as where, for instance, one miner holds the drill while another strikes, or where in blasting or timbering, each is in a situation to know the want of care of the other. Any other application of such doctrine is, in our opinion, without disrespect to others, contrary to the dictates of common justice and common humanity. It is time that courts were coming back to the doctrine of “respondent superior.” It will best insure safety to life and limb by throwing the risk upon those who can best guard against the dangers, and who ought to use the utmost caution in the employment of their agents.

The supreme court of California in Yeomans v. Contra Costa S. N. Co., say, (44 Cal. 71:) “Great objections have been made to the rule which relieves a master from liability for damages incurred by the negligence of a fellow-servant. While the rule is too firmly supported by authority to be overthrown, we are unwilling to extend it beyond the limits designated by the general line of decisions. Courts have gone so far as to relieve from responsibility corporations acting through general agents, within the scope of their authority, classing the foreman, managers, and superintendents, with those under them, as eo-laborers; but the supreme court of the United States begins to turn the tide, and Judge Field, in his learned and admirable opinion of Chicago, M. & St. P. Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, quotes approvingly from Redfield (volume 1, p. 554) these words: ‘The consequences of mistake or misapprehension upon this point have led many courts into conclusions greatly at variance with the common instinct of reason and humanity, and have tended to interpose an unwarranted shield between the conduct of railway employes and the just responsibility of the company. We trust that the reasonableness and justice of this construction will, at no distant day, induce its universal adoption.” To accord justice, the greatest difficulty is how to determine who are fellow-servants. If, as before said, they are those who could be watched by their fellows, then it would be unjust to hold the employers responsible. In the Boss Case it is said: “But notwithstanding the number and weight of such decisions there are in this country many adjudications of courts of great learning, restricting the exemption to cases where the fellow-servants are engaged in the same department, and act under the same immediate direction, and holding that, within the reason and principle of the doctrine, only such servants can be considered as are engaged in the same common employment. It is not, however, essential to the decision of the present controversy to lay down a rule which will determine in all cases what is to be deemed such an employment, even if it were possible to do so. ’ ’

The Boss Case held the railroad company liable for injuries to the engineer caused by the negligence of the conductor of the same train in not showing the engineer an order from the train dispatcher of the coming of a gravel train, with which, by reason thereof, a collision occurred; and the court puts its decision upon the ground that the conductor had control of the train, and direction of the engineer, brakemen, etc., and, “as to them and the train, he stands in the place of and represents the corporation. ’ ’ Four of the members of the supreme court dissent from the opinion of the majority of the court. Thus, it will be seen that in the minds of just and learned jurists no agreement exists. It is to be hoped that there will be uniformity of decisions on this question, so vital to the general welfare, and that the definition as to who are fellow-servants will be more definitely fixed.

The real issue in this ease is, as given in the instructions of the court, as follows: “If the jury believe from the evidence in this cas.e, and from alL the circumstances in proof, that the plaintiff was employed by the defendant as a teamster for the purpose of drawing ties, and not employed as a hand on the train, and it was not any part of his duty to be connected with the train, then the court instructs you that the plaintiff would not be considered in law in the same line of employment as the engine-driver. If you believe, however, from the evidence, that the plaintiff was employed by the defendant for the purpose of driving a team, and was also employed, and it was a part of his duty, to be connected with, and he formed a part of the working force of and on the construction train, then the court instructs you that it would be considered in law that he was employed in the same line of employment as the engine-driver; and in that case you would find for the defendant on that point, unless you believe from the evidence that the engine-driver was incompetent, and that such incompeteney was known to the defendant prior to his employment, or that such incompetency has been shown by the evidence to have ben known to the defendant by some agent or officer of the defendant, prior to the accident, who had a right to remove him, and, having the power to remove him, failed to remove him.”

This was the gist of the case, and we take it that no other error would have worked an injury to defendant. Chicago, etc. Ry. Co. v. Ross, 112 U. S. 377; 5 Sup. Ct. Rep. 184; Brobst, v. Brock, 10 Wall. 519.

We do not understand whether or not it was determined by the district judge whether the affidavit of Dr. Handy and Mr.' Pomeroy were used on motion for new trial. If so used, we hold they were not sufficient, because it does not appear that the testimony was discovered after the trial. Arnold v. Skaggs, 35 Cal. 687.

The only question which now remains is, were the damages excessive? The verdict and judgment were for $30,000. On the motion for a new trial the district judge was of opinion that it was excessive to the amount of $15,000. That sum, in open court, was remitted by plaintiff, and accordingly judgment was rendered for $15,000. We do not deem that amount to be too much compensation for the loss of both legs by a healthy man of middle age.

Before closing, one or two other points should be considered. It is urged that the complaint does not state a cause of action, and so no evidence was admissible under it, for the reason that negligence of defendant is not alleged with sufficient particularity. The complaint was filed March 12, 1883. A demurrer was filed April 3,1883, making two grounds of demurrer : ‘ ‘ That the first alleged cause of action does not state facts sufficient to constitute a. cause of action; that the second alleged cause of action does not state facts sufficient to constitute a cause of action.” This amounts to a general demurrer to the two statements of the cause of action or counts of the complaint. On December 11, 1883, an amended complaint was filed, the same as the first, except is added the allegation of due care on the part of plaintiff.

No demurrer seems to have been filed to the amended complaint; hence any insufficiency which might have then been cured by amendment may not now be urged as ground for reversal. The complaint, however, alleges (section 4) that the engine was out of order, and that, by reason thereof, and negligence and careless handling of the same by defendant and its servants, the car on which plaintiff was, was driven with great violence against a box car standing on defendant’s track, by which plaintiff was injured. Section 3 states that plaintiff got on a train of cars of defendant to be carried, etc. For separate cause of action the complaint alleges that plaintiff was rightfully on a train of cars of defendant, and that, while on said train of cars, a collision occurred, caused by the negligence of defendant and its servants, whereby plaintiff was injured, etc. Were it admitted—which is not necessary for us to decide here—that this complaint would be obnoxious to a special demurrer on the ground that the alleged negligence is not stated with sufficient particularity, we are of opinion that it is sufficient, as against a general demurrer. Evidence must not be pleaded; only the general or ultimate facts need be alleged. It would be proper to prove that a collision occurred by reason of a defective brake; that the brake was defective by reason of an unsound piece of wood; that the unsound piece of wood was used by a drunken workman ; and that defendant did or by due diligence could have known him to be drunken, and retained him in that service. All these facts tend to prove that a collision occurred by reason of negligence, which is the alleged fact to be demonstrated. But it would be bad pleading, and obnoxious to a special demurrer on that ground. Bliss, Code Pl. § 211; Thomp. Neg. 1246 et seq.; and see Wabash Ry. Co. v. McDaniels, 107 U. S. 454; 2 Sup. Ct. Rep. 932; Oldfield v. New York etc R. R. Co., 14 N. Y. 310; Boone, Code Pl. § 174, and cases cited.

It is also objected that the court permitted evidence to go to the jury tending to show that the engineer was drunk, or under the influence fo liquor, at the time, because that fact was not alleged. This evidence was part of the res gestae. It was one of the proximate facts existing at the time tending to prove that the engine was negligently driven against other cars. The engineer being drunk did not injure plaintiff; it was the collision, caused, perhaps, by intoxication. The court permitted evidence tending to show that the engineer was habitually intoxicated, and a reckless “runner.” This was competent, as tending to show that at the time alleged he handled his engine negligently. It tended to prove the alleged fact of a collision caused by negligence. The court permitted evidencé that this engineer was reputed to be a reckless runner, and in the habit of becoming intoxicated. While this was error, it is not such an eror as should reverse in this case. It could only affect the question whether the engine was handled negligently. Were that a doubtful question in this case, then this evidence should influence us to reverse the judgment. But the evidence is clear and overwhelming that the engine was driven under circumstances of great danger, with reckless violence against cars standing on the track. That being true, this evidence could not affect the verdict in this case.

The amended judgment rendered seventeenth November, permitting the judgment of twelfth of December, 1883, to stand, upon the plaintiff remitting $15,000, and the order denying the motion for a new trial, are affirmed.

Barnes, J., concurs.